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2021 DIGILAW 446 (GAU)

David Lallianthanga v. State of Mizoram

2021-07-23

NELSON SAILO

body2021
JUDGMENT : Nelson Sailo, J. 1. This is an appeal from jail directed against the Judgment and Order dated 12.10.2015 passed by the learned Sessions Judge, Aizawl in SR No. 22 of 2014 A/o Crl. Trl. No. 2134 of 2013 u/s. 376 (2)(i) of the Indian Penal Code (IPC) convicting the appellant under the aforesaid section of law. On being convicted as such, the appellant was sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1,000/- and in default thereof, to undergo simple imprisonment for one (1) month. 2. The case of the prosecution in brief is that on 02.12.2013, a written FIR was submitted by Lalmalsawmi (PW-1) of Zuangtui to the effect that on 01.12.2013, the appellant committed an offence of penetrative sexual assault upon her daughter who was a minor and 12 years of age. As a result, Bawngkawn P.S Case No. 224/2013 dated 02.12.2013 under Section 376 (2)(i) IPC r/w Section 4 of the POCSO Act, 2012 was registered and the case investigated into by the investigating officer (Case 10). During the course of investigation, the case I.O. examined the complainant as well as the victim, and records their statements. The victim was also forwarded to the Civil Hospital for medical examination. Thereafter, upon finding a prima facie case against the appellant under the aforesaid sections of law, the case I.O. submitted the charge-sheet. 3. The Trial Court thereafter framed charge against the appellant under Section 376 (2) (i) IPC and to which, the appellant pleaded not guilty. As such, trial commenced against the appellant and during which time, the prosecution examined 8 (eight) prosecution witnesses while the defence did not examine any defence witness. Upon conclusion of the prosecution evidence, the appellant was examined under Section 313 Cr.P.C. Thereafter, upon hearing the rival parties, the learned Trial Court vide the impugned Judgment & Order convicted and sentenced the appellant in the manner as already indicated herein above. 4. Mr. Aldrin Lallawmzuala, the learned Amicus Curiae appearing for the appellant submits that the prosecution failed to establish the fact that penetration on the vagina of the victim girl had taken place to constitute rape. In fact, as per the report of the medical doctor, the victim's hymen was intact and that there were no injuries on her person and in her genital area. In fact, as per the report of the medical doctor, the victim's hymen was intact and that there were no injuries on her person and in her genital area. Referring to Section 375 of the IPC, the learned Amicus Curiae submits that in order to constitute rape, there has to be a penetration of the penis into the vagina to any extent. The same, however in the instant case, has not been established and therefore, the conviction of the appellant under Section 376 (2)(i) IPC cannot be sustained and at the most, the appellant may be guilty of having attempted to commit rape. As such, the charge may be altered to Section 376 r/w Section 511 of the IPC. The learned Amicus Curiae also draws the attention of this Court to the statements made by the appellant in his examination under Section 313 of the Cr.P.C. to show that rape was not committed upon the prosecutrix. The learned Amicus Curiae in support of his submissions relies upon the case of Ram Narayan Jha vs. State of Assam, 1999 (1) GLT 54. 5. Appearing for the State, Mr. C. Zoramchhana, learned Public Prosecutor by referring to Section 375 of the IPC submits that indeed in order to constitute rape, there has to be penetration of the penis to any extent into the vagina. That since the prosecutrix was only 12 years of age at the time of the incident, it would be immaterial as to whether she had given her consent or not, as provided under the sixth clause of Section 375 IPC. Further referring to Section 376 (2)(i) IPC, the learned Public Prosecutor submits that the said provision is for punishment of commission of rape on a woman who is under 16 years of age. The punishment prescribed is rigorous imprisonment for a term which shall not be less than 10 (ten) years and which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life and shall also be liable to fine. He submits that the appellant has been rightly convicted under the aforesaid section of law and that he was only given the minimum sentence prescribed. 6. He submits that the appellant has been rightly convicted under the aforesaid section of law and that he was only given the minimum sentence prescribed. 6. The learned Public Prosecutor referring to the evidence of the prosecution witnesses, more particularly the evidence of the prosecutrix, submits that the prosecutrix on oath had clearly stated that the appellant inserted his male organ into her vagina. She felt pain but she did not cry out as she was afraid of him and then, the accused told her to go away since she felt pain. He submits that the evidence of the prosecutrix has clearly been corroborated by the deposition of PW-1, who is the informant and mother of the prosecutrix. The judicial statement of the prosecutrix was recorded by the Judicial Magistrate 1st Class, Aizawl District, Aizawl on 30.01.2014, wherein she clearly stated that the appellant inserted his private part inside hers and he started moving his body in a rhythmic motion. As she felt pain, he did not thrust it much. After a while, he told her to go home. She felt deeply hurt and did not narrate about the incident to anyone on that day. However, on the next day after school, on being insisted by her mother, she revealed the entire incident to her. The learned Public Prosecutor submits that the judicial statement of prosecutrix was not only exhibited but the Judicial Magistrate 1st Class who recorded her statement was also examined as PW-7. Under the circumstance, the prosecution has been able to establish the charge against the appellant with proof beyond reasonable doubt. Referring to the evidence of the doctor (PW-5) who examined the prosecutrix, the learned Public Prosecutor submits that although no seminal stains or marks of violence on the body of the victim was found but the doctor found the hymen to be intact but loose, admitting one finger. No vaginal smear was taken since the victim had already changed her clothes and taken bath after the incident. He submits that the doctor clearly observed that due to physical difference of anatomical structures, there are occasions where the hymen which is elastic may admit one finger or more. This is basically due to manipulation or inborn anatomical variation. No vaginal smear was taken since the victim had already changed her clothes and taken bath after the incident. He submits that the doctor clearly observed that due to physical difference of anatomical structures, there are occasions where the hymen which is elastic may admit one finger or more. This is basically due to manipulation or inborn anatomical variation. He submits that the evidence of the prosecution witnesses read as a whole clearly establishes the fact that the appellant had committed rape upon the prosecutrix and under the facts and circumstances, the impugned judgment and order may be upheld by this Court. In support of his submission, the learned Public Prosecutor relies upon the case of Aman Kumar and Another vs. State of Haryana, (2004) 4 SCC 379 . 7. I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on record including the lower court records (LCR). 8. From the aforesaid discussion and submission made, the issue to be decided is as to whether the prosecution was able to prove the charge i.e. whether rape was committed upon the prosecutrix as reported through the FIR dated 02.12.2013. Before proceeding further, it may be useful to abstract Section 375 IPC which is as follows: : “375. Rape - A man is said to commit “rape” if he: (a) penetrates his penis, to any extent, into the vagina, mouth urethra or anus of a woman or makes her to do so with him or any other person. (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person. (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person. (d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions: First - Against her will. Secondly - Without her consent. (d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions: First - Against her will. Secondly - Without her consent. Thirdly - With her consent when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt. Fourthly - With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly - With her consent, when at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly - With or without her consent, when she is under eighteen years of age.” 9. From the above abstract, it may be seen that in order to constitute rape, there has to be penetration of the penis into the vagina and which may be to any extent. Giving consent or not by a woman who is under 18 years of age is immaterial. Coming to the facts of the present case, it may be seen that the evidence of the PW-1, who is the informant and mother of the prosecutrix is to the effect that the prosecutrix is the eldest daughter amongst her four (4) children and she was born on 06.04.2001. On 02.12.2013, the prosecutrix approached her while she was making the bed. She had just returned from school and she said that she had something to tell her. But then, she hesitated and said that she would inform her in the coming week. However, PW-1 insisted and so the prosecutrix informed her that the appellant had assaulted her sexually the previous day i.e. 01.12.2013 in the house under construction belonging to Tehlua. PW-1 then asked the prosecutrix as to whether the appellant had sexual intercourse with her and to which she applied in tears that the accused had, in fact, committed rape upon her. PW-1 then asked the prosecutrix as to whether the appellant had sexual intercourse with her and to which she applied in tears that the accused had, in fact, committed rape upon her. Upon learning the facts, she informed their neighbor Niangi where the accused appellant was residing and she asked her to wait for her sister's return. In the meantime, she informed her sister-in-law, who in turn, narrated the incident to her father (pa zawn). She was then advised by her father to submit an FIR and accordingly, FIR was submitted in Bawngkawn Police Station. In her cross-examination, PW-1 stated that she was informed about the incident by the prosecutrix on the next day of the incident. She also recollected the fact that the prosecutrix did not have her dinner on the day of the incident and she also did not have her morning meal the next day. 10. The prosecutrix was examined as PW-2 and in her examination-in-chief, she deposed that on 01.12.2013, which was a Sunday, as there was no Sunday School, she was at home with her cousin brother Lalngaihawma and her mother was in the Church. The appellant had come to their house and he sat near her in the long chair. He asked her to drop him to his house and borrow books also. She accompanied him till the door of their house but he dragged her from the door of their house to the house under construction belonging to Tehlua. In the beginning, he showed her some card tricks and when the prosecutrix informed him that she had to go back to her house, he asked her to stay. He told her that he would marry her when she attained the age of 16 and to which the prosecutrix simply laughed. The appellant then asked her to kiss him on the face but she refused. Thereafter, the accused hugged her and said that the place was too congested and he carried her forcibly to the bed. He attempted to remove her pants, but she struggled. The accused had already taken his clothes and forcibly removed her pants. The prosecutrix being afraid of the appellant did not cry out for help but struggled to the best of her strength. The appellant then inserted his male organ into her vagina, she felt pain but did not cry out. He attempted to remove her pants, but she struggled. The accused had already taken his clothes and forcibly removed her pants. The prosecutrix being afraid of the appellant did not cry out for help but struggled to the best of her strength. The appellant then inserted his male organ into her vagina, she felt pain but did not cry out. The accused told him to go away since she felt pain. The prosecutrix returned home and did not inform anyone about the incident since she was afraid of the appellant. The next day, the prosecutrix wanted to inform her mother but then told her that she would tell her something in the coming week. However, as her mother insisted, she narrated the incident to her. The prosecutrix also stated that on 31.01.2014, her confessional statement was recorded by the Judicial Magistrate and she exhibited the same and her signature as Exhibit P-2 and P-2 A respectively. In her cross-examination, the prosecutrix stated that it was the fact that the accused had inserted his male organ into her vagina. 11. PWs. 3 and 4 are seizure witnesses, who witnessed the seizure of the baptismal certificate of the prosecutrix which was for ascertaining the age of the prosecutrix. Since the fact that the prosecutrix being under age is not disputed, it may not be necessary to dwell upon the evidence of PWs 3 and 4. 12. PW-5 is Dr. Lalbiakdiki and she is the one who examined the prosecutrix and made a medical report In her examination-in-chief, she deposed that on 02.12.2013 at about 9:30 P.M. the prosecutrix was produced before her with a requisition for medical examination in connection with a case of alleged rape. As she examined the prosecutrix, she found her to be stable and not under influence of drugs or alcohol. She did not find any seminal stain or marks of violence on the body of the prosecutrix. There were also no marks of any stains on her clothing. On examining her genitals, she did not find any bruise or seminal stains on the external parts of the genitals. Her hymen was found to be intact but loose admitting one finger. There was no sign of injury on the victim. No smear was taken since the victim had already changed her clothes and taken bath after the alleged incident. On examining her genitals, she did not find any bruise or seminal stains on the external parts of the genitals. Her hymen was found to be intact but loose admitting one finger. There was no sign of injury on the victim. No smear was taken since the victim had already changed her clothes and taken bath after the alleged incident. PW-5 also stated that it has been observed medically that due to physical differences of anatomical structures, there are occasions where the hymen which is elastic may admit one finger or more. This is basically due to manipulation or inborn anatomical variation. She exhibited the medical report and her signature as Exhibit P-4 and P-4 A respectively. In her cross-examination, PW-5 stated that she was not sure of the time lapse between the incident and medical examination, as there are no records to show the date/time of incident on the report form for medical examination. Finger indicated in the medical report was her index finger and that it was possible that the incident may have occurred sometime earlier since there was no bruise, injury or any other marks on the prosecutrix. 13. PW-7 is Mr. Thomas Lalrammawia, Judicial Magistrate 1st Class, who had recorded the judicial statement of the prosecutrix. In his examination-in-chief, he stated that on 30.01.2014, the prosecutrix was produced before him for recording judicial statement and accordingly, he recorded her statement in his cross-examination, he reiterated what has stated in his examination-in-chief. 14. PW-8 is Smt. Lalhmachhuani Sailo, the case I.O. In her examination-in-chief, she stated that during the year 2013, she was posted at CAW Cell as Officer-in-Charge. Pursuant to the FIR filed on 02.12.2013 by the PW-1 and a case registered, she conducted investigation as the case was endorsed to her. In such process, she examined the complainant as well as the victim and recorded their statements. She also arrested the appellant and during his interrogation, he admitted his guilt. Upon completing the investigation, she found a prima facie case well established under Section 376 (2)(i) IPC r/w Section 4 of the POCSO Act against the appellant and so, she submitted the charge-sheet before the Court. She exhibited the seizure memo, her signature, baptismal certificate, the charge-sheet and her signature as Exhibit Nos. P-2, P-2 C, P-3, P-4 and P-4 A respectively. 15. She exhibited the seizure memo, her signature, baptismal certificate, the charge-sheet and her signature as Exhibit Nos. P-2, P-2 C, P-3, P-4 and P-4 A respectively. 15. From the evidence led by the prosecution witnesses, it may be seen that the statement made by the prosecutrix is clearly corroborated by the statement made by PW-1. The chain of evidence narrated by her in her deposition as PW-2 and her statement recorded by the Judicial Magistrate 1st Class i.e. PW-7 are also consistent and similar. PW-7 has also deposed on oath that on 30.1.2014, the prosecutrix was produced before him for recording her judicial statement and accordingly, he had recorded her statement. He also exhibited the statement of the prosecutrix recorded by him. I have also noticed that the evidence of PW-1, PW-2 and PW-7 has neither been shaken nor falsified by the defence during cross-examination and that the appellant has also not examine any defence witness. It is further important to note that from the evidence of PW-5 and the medical report marked as Exhibit P-4, although the hymen of the prosecutrix was not ruptured but it was found to be loose and it admitted one finger. PW-5 also stated that due to physical differences anatomical structures there are occasions where the hymen which is elastic may admit one finger or more. 16. In the case of Ram Narayan Jha (supra), this Court on the facts of that case found discrepancy and contradiction. The prosecutrix had stated before the case I.O. that she raised hue and cry when the accused tried to rape her but then in her evidence before the Court, she stated that she could not raised hue and cry as the accused gagged her mouth. The doctor, who was examined as one of the prosecution witnesses stated that he found no spermatozoa or gonococci in smears, no recent injury or evidence of violence in her body and private part. He also opined that the evidence of recent sexual intercourse was absent. Under such circumstance, the accused was given the benefit of doubt and the charge under Section 376 IPC was altered into one under Section 376/511 IPC (attempt to commit rape) and the sentence was accordingly modified/reduced. However, in the instant case, there is no variation or inconsistency in the testimony of the prosecutrix. Under such circumstance, the accused was given the benefit of doubt and the charge under Section 376 IPC was altered into one under Section 376/511 IPC (attempt to commit rape) and the sentence was accordingly modified/reduced. However, in the instant case, there is no variation or inconsistency in the testimony of the prosecutrix. There is no difference in the narrations about the incident in her confessional statement and in her examination-in-chief during trial as PW-2. Further, her statements are also corroborated by the statements of PW-2. Section 375 IPC provides that penetration of the penis into the vagina to any extent constitutes rape. The said Section nowhere indicates that the tearing of the hymen is a condition precedent to constitute rape. The Apex Court in the case of Aman Kumar & Anr. (supra) held that in order to constitute the offence of rape, it is not necessary that there should be complete penetration of the penis with the emission of semen and rupture of hymen. The Apex Court further held that there is no rule of law which provides that the testimony of the prosecutrix alone and without corroboration cannot be acted upon for convicting an accused for commission of rape. It would be gainful to abstract relevant portion of the said decision as follows: “5. It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and emotional. However, if the court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice would suffice. 6. The offence of rape occurs in Chapter XVI IPC. It is an offence affecting the human body. In that chapter, there is a separate heading for “Sexual offences” which encompass Sections 375, 376, 376-A, 376-B, 376-C and 376-D. “Rape” is defined in Section 375. Assurance, short of corroboration as understood in the context of an accomplice would suffice. 6. The offence of rape occurs in Chapter XVI IPC. It is an offence affecting the human body. In that chapter, there is a separate heading for “Sexual offences” which encompass Sections 375, 376, 376-A, 376-B, 376-C and 376-D. “Rape” is defined in Section 375. Sections 375 and 376 have been substantially changed by Criminal Law (Amendment) Act, 1983, and several new sections were introduced by the new Act, i.e. 376-A, 376-B, 376-C and 376-D. The fast sweeping changes introduced reflect the legislative intent to curb with an iron hand, the offence of rape which affects the dignity of a woman. The offence of rape in its simplest term is “the ravishment of a woman, without her consent, by force, fear or fraud” or as “the carnal knowledge of a woman by force against her will.” “Rape or Raptus” is when a man hath carnal knowledge of a woman by force and against her will (Co.Litt. 123 b); or, as expressed more fully, “rape is the carnal knowledge of any woman, above the age of particular years, against her will; or of a woman child, under that age, with or against her will.” (Hale P.C. 628) The essential words in an indictment for rape are rapuit and carnaliter cognovit; but carnaliter cognovit, nor any other circumlocution without the word rapuit, are not sufficient in a legal sense to express rape. [1 Hen. 6, 1a, 9 Edw. 4, 26 a (Hale P.C.628). In the crime of rape, “carnal knowledge” means the penetration to any the slightest degree of the organ alleged to have been carnally known by the male organ of generation (Stephens Criminal Law, 9th Ed., p. 262). In Encyclopedia of Crime and Justice (Vol. 4, p. 1356), it is stated “...even slight penetration is sufficient and emission is unnecessary.” In Halsburys' Statutes of England and Wales (4th Edn.) Volume 12, it is stated that even the slightest degree of penetration is sufficient to prove sexual intercourse. It is violation, with violence, of the private person of a woman, an outrage by all means. By the very nature of the offence it is an obnoxious act of the highest order. 7. Penetration is the sine qua non for an offence of rape. It is violation, with violence, of the private person of a woman, an outrage by all means. By the very nature of the offence it is an obnoxious act of the highest order. 7. Penetration is the sine qua non for an offence of rape. In order to constitute penetration, there must be evidence clear and cogent to prove that some part of the virile member of the accused was within the labia of the pudendum of the woman, no matter how little (See Joseph Lines, IC & K 893). It is well known in the medical world that the examination of smegma loses all importance after twenty four hours of the performance of the sexual intercourse. [See: Dr. S.R Kohli vs. High Court of Punjab and Haryana] In rape cases, if the gland of the male organ is covered by smegma, it negatives the possibility of recent complete penetration. If the accused is not circumcised, the existence of smegma around the corona gland is proof against penetration, since it is rubbed off during the act. The smegma accumulates if no bath is taken within twenty-four hours. The rupture of hymen is by no means necessary to constitute the offence of rape. Even a slight penetration in the vulva is sufficient to constitute the offence of rape and rupture of the hymen is not necessary. Vulva penetration with or without violence is as much rape as vaginal penetration. The statute merely requires evidence of penetration, and this may occur with the hymen remaining intact. The actus reus is complete with penetration. It is well settled that the prosecutrix cannot be considered as accomplice and, therefore, her testimony cannot be equated with that of an accomplice in an offence of rape. In examination of genital organs, state of hymen offers the most reliable clue. While examining the hymen, certain anatomical characteristics should be remembered before assigning any significance to the findings. The shape and the texture of the hymen is variable. This variation, sometimes permits penetration without injury. This is possible because of the peculiar shape of the orifice or increased elasticity. On the other hand, sometimes the hymen may be more firm, less elastic and gets stretched and lacerated earlier. Thus a relatively less forceful penetration may not give rise to injuries ordinarily possible with a forceful attempt. This variation, sometimes permits penetration without injury. This is possible because of the peculiar shape of the orifice or increased elasticity. On the other hand, sometimes the hymen may be more firm, less elastic and gets stretched and lacerated earlier. Thus a relatively less forceful penetration may not give rise to injuries ordinarily possible with a forceful attempt. The anatomical feature with regard to hymen which merits consideration is its anatomical situation. Next to hymen in positive importance, but more than that in frequency, are the injuries on labia majora. These, viz. labia majora are the first to be encountered by the male organ. They are subjected to blunt forceful blows, depending on the vigour and force used by the accused and counteracted by the victim. Further, examination of the female for marks of injuries elsewhere on the body forms a very important piece of evidence. To constitute the offence of rape, it is not necessary that there should be complete penetration of the penis with emission of semen and rupture of hymen. Partial penetration within the labia majora of the vulva or pudendum with or without emission of semen is sufficient to constitute the offence of rape as defined in the law. The depth of penetration is immaterial in an offence punishable under Section 376 IPC. 8. The plea relating to applicability of Section 376 read with Section 511 IPC needs careful consideration. In every crime, there is first, intention to commit, secondly preparation to commit it, thirdly, attempt to commit it. If the third stage, that is, attempt is successful, then the crime is complete. If the attempt fails the crime is not complete, but law punishes the person attempting the act. Section 511 is a general provision dealing with attempts to commit offences not made punishable by other specific sections. It makes punishable all attempts to commit offences punishable with imprisonment and not only those punishable with death. An attempt is made punishable, because every attempt, although it falls short of success, must create alarm, which by itself is an injury, and the moral guilt of the offender is the same as if he had succeeded. Moral guilt must be united to injury in order to justify punishment. As the injury is not as great as if the act had been committed, only half the punishment is awarded.” 17. Moral guilt must be united to injury in order to justify punishment. As the injury is not as great as if the act had been committed, only half the punishment is awarded.” 17. What can briefly be appreciated from the above abstract for the purpose of the present case is that penetration is the sine qua non to constitute an offence of rape. In order to constitute penetration, there must be evidence clear and cogent to prove that some part of the virile member of the accused was within the labia of the pudendum of the woman, no matter how little. Further, the rupture of hymen is not necessary to constitute the offence of rape and in fact, even a slight penetration in the vulva will be sufficient to constitute the offence of rape. Applying the ratio to the instant case and analyzing the evidence led by the prosecution, I am of the considered view that the prosecution has been able to proof beyond reasonable doubt the fact that the accused committed rape upon the prosecutrix. Accordingly, the appeal is found to be devoid of any merit and the same is dismissed. 18. For the valuable assistance rendered by Mr. Aldrin Lallawmzuala, the learned Amicus Curiae, he shall be paid a sum of Rs. 7,500/- (Rupees Seven Thousand, Five Hundred) only, by the Mizoram State Legal Services Authority on production of a copy of this Order. 19. Office to send back the LCR immediately.